United States v. Green

UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ROBERT WILLIAM GREEN, Defendant-Appellant.

Appeal
from the United States District Court for the Northern
District of Florida D.C. Docket No. 3:14-cr-00007-RV-1

ON
PETITION FOR REHEARING

Before
JORDAN and JULIE CARNES, Circuit Judges, and ROBREÑO,
[*] District
Judge.

JULIE
CARNES, Circuit Judge

In
light of this Court's en banc decision in United
States v. Vail-Bailon, 868 F.3d 1293 (11th Cir. 2017),
we hereby vacate our prior panel opinion, published at 842
F.3d 1299, and substitute it with the following opinion,
which has been revised only in Section II.D. Accordingly,
Defendant's motion for panel rehearing is denied as moot.

A jury
convicted defendant Robert Green of being a felon in
possession of a firearm or ammunition in violation of 18
U.S.C. § 922(g)(1). The district court sentenced
Defendant to 262 months in prison followed by 3 years of
supervised release. Defendant appeals his conviction and
sentence. After careful review, we affirm.

I.
BACKGROUND

A.
Facts

In
early 2013, Defendant was charged with various state
offenses. While on pre-trial release, Defendant wore a
court-ordered GPS monitoring bracelet that reported his
location to the Santa Rosa County Sheriff's Office. On
April 3, 2013, the Sheriff's Office discovered that
Defendant was no longer wearing the GPS bracelet. A week
later, several officers went to the home of Jodi Simmons,
where they believed they would find Defendant, [1] to arrest him.
Initially, Ms. Simmons denied that Defendant was inside, but
she gave the officers permission to enter the trailer and
search for him. When they entered the master bedroom, the
officers discovered a man's camouflage jacket hanging on
the bedpost. The jacket was a large jacket and Jodi Simmons
was not a large person. On the floor next to the bed, and on
the same side of the room as the closet, the officers
observed a pair of men's shoes. On a nearby nightstand,
the officers saw a firearm loaded with .22 caliber
ammunition, two pipes of the type typically used to smoke
methamphetamine, a camouflage bag, and a washcloth. The
camouflage bag contained a digital scale, .6 grams of
methamphetamine, .22 caliber ammunition, and empty plastic
baggies of the type used to hold drugs or ammunition. On the
floor of the bedroom, near the man's jacket and pair of
shoes, the officers also found a blue bag containing tools
and ingredients used to manufacture methamphetamine, as well
as more .22 caliber ammunition. The blue bag contained an
identification card in the blue bag that did not belong to
Defendant or Simmons.

Confronting
Simmons with their belief that Defendant was in fact in the
trailer, Simmons said, "He went that way, " and
pointed the officers back toward the master bedroom. An ATF
agent who had accompanied the deputies to the trailer found
Defendant hiding in in the master bedroom closet under a pile
of clothes. He was wearing no shoes.

Defendant
resisted arrest and struggled with the officers, but
eventually they were able to handcuff and place him in a
patrol car. While Defendant was seated in the car, the ATF
agent opened the car door and knelt down to speak to
Defendant, reading to him Miranda rights and
indicating that he wanted to talk to Defendant about the
firearm that had been discovered. Defendant told him that he
had only recently acquired the gun, having traded some
methamphetamine for it. A local deputy, who had been summoned
to transport Defendant to the jail, was standing at the back
of the car at the time, but did not overhear the conversation
between Defendant and the ATF agent. Several months later,
when the same ATF agent transported Defendant from local
custody to federal court on the present charge, Defendant
volunteered to the agent that the firearm discovered in
Simmons's trailer was not his, but that instead he owned
only a BB gun.

B.
Procedural History

The
Government charged Defendant with being a felon in possession
of a firearm and ammunition, in violation of 18 U.S.C. §
922(g)(1).[2] In support of

Defendant's alleged felon status, the indictment listed
12 prior felony convictions. Before trial, Defendant
stipulated to being a convicted felon. Accordingly, the
district judge redacted the indictment to remove the listing
of Defendant's 12 prior convictions in the copy of the
indictment to be submitted to the jury. Over Defendant's
objection, however, the district judge declined to remove the
following sentence in the indictment: "For each of these
crimes, ROBERT WILLIAM GREEN was subject to punishment by a
term of imprisonment exceeding one year."

Also
before trial, the Government notified Defendant that it
planned to introduce Defendant's 2006 Florida conviction
for being a felon in possession of a firearm or ammunition
under Federal Rule of Evidence 404(b). Defendant moved in
limine to exclude the evidence because the conviction
resulted from a plea of nolo contendere. After a
lengthy colloquy with counsel, the district judge denied
Defendant's motion and admitted Defendant's prior
conviction.

Nonetheless,
pursuant to a request by defense counsel and a stipulation
between the parties, the jury was informed only that
Defendant had been convicted of possession of ammunition by a
convicted felon and that the ammunition in question was
shotgun shells. The district judge then gave the jury the
standard cautionary instruction regarding Rule 404(b)
evidence, explaining to them that they could not consider the
above evidence to decide if Defendant had committed the acts
charged in the indictment, but instead they must first find
beyond a reasonable doubt from the other evidence whether
Defendant had committed those acts. The court instructed that
if the jury first found that Defendant had committed the
charged acts, then it could consider the prior conviction to
decide whether Defendant had the state of mind or intent
necessary to commit the charged act.

At the
close of the Government's case, Defendant moved for a
judgment of acquittal. He argued that the Government's
evidence was insufficient to show that he had actual or
constructive possession of the firearm or ammunition.
Regarding his confession, Defendant asserted
that it was unreliable, uncorroborated by the other evidence,
and therefore insufficient to establish constructive
possession. The district judge denied Defendant's motion.
The jury returned a guilty verdict.

The
United States Probation Office prepared a Presentence
Investigation Report (PSR). The PSR set an adjusted base
offense level of 28. Based on a lengthy and violent criminal
record, Defendant had 26 criminal history
points.[3]The PSR also recommended that Defendant be
sentenced under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), based on the existence of four prior
qualifying Florida convictions: (1) aggravated assault with
intent to commit a felony; (2) resisting an officer with
violence; (3) third-degree felony battery; and (4) felony
battery causing great bodily harm. The ACCA enhancement
resulted in a total offense level of 34. With a criminal
history category of VI, the PSR yielded a sentencing range of
262 to 327 months' imprisonment.

Defendant
objected to the ACCA classification, arguing that his two
felony battery convictions were not categorically violent and
questioning whether the PSR's descriptions of the facts
underlying the two convictions were drawn from
Shepard documents. In response, the Government
provided the statutory basis, charging document, and judgment
for each conviction. The district court overruled
Defendant's objection and sentenced Defendant to 262
months' imprisonment.

Defendant
now appeals his conviction and sentence.

II.
DISCUSSION

On
appeal, Defendant argues that the district court erred by (1)
denying his motion for a judgment of acquittal; (2) refusing
to change the word "crimes, " in the
indictment's reference to Defendant's prior
convictions, to the singular "crime"; (3) admitting
evidence of his 2006 conviction under Rule 404(b); and (4)
sentencing him under the ACCA.

A.
Judgment of Acquittal

Defendant
argues that the district court erred by denying his motion
for a judgment of acquittal. "We review de novo
the denial of a motion for judgment of acquittal, viewing the
evidence in the light most favorable to the government and
drawing all reasonable inferences in favor of the jury's
verdict." United States v. Martin, 803 F.3d
581, 587 (11th Cir. 2015). "The issue is not whether a
jury reasonably could have acquitted but whether it
reasonably could have found guilt beyond a reasonable
doubt." Id. (quoting United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006)).

To
prove that Defendant violated § 922(g)(1), the
Government had to show (1) that Defendant knowingly possessed
a firearm or ammunition, (2) that Defendant was a convicted
felon, and (3) that the firearm or ammunition was in or
affecting interstate commerce. United States v.
Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Defendant
contests only the first element: his knowing possession of
the firearm and ammunition.

The
parties agree that Defendant did not have actual possession
of the firearm or ammunition at the time the officers found
him: Defendant was in the closet, and the gun and ammunition
were nearby. "[But] [t]he government need not prove
actual possession in order to establish knowing possession;
it need only show constructive possession through direct or
circumstantial evidence." United States v.
Beckles, 565 F.3d 832, 841 (11th Cir. 2009) (quoting
United States v. Greer, 440 F.3d 1267, 1271 (11th
Cir. 2006)). A defendant constructively possesses a firearm
or ammunition if he (1) is aware of or knows of the
firearm's or ammunition's presence and (2) has the
ability and intent to exercise control over that firearm or
ammunition. United States v. Perez, 661 F.3d 568,
576 (11th Cir. 2011) (per curiam). "However, a
defendant's mere presence in the area of [an object] or
awareness of its location is not sufficient to establish
possession." Beckles, 565 F.3d at 841
(quotation marks and citation omitted).

Here, a
rational trier of fact could conclude that Defendant had both
(1) knowledge of the presence of the firearm and ammunition
in the bedroom where he was found and (2) the ability and
intent to exercise control over the firearm and ammunition,
as required to establish constructive possession. As to the
first prong of the constructive possession test, the evidence
reasonably permits an inference that Defendant knew that the
firearm and ammunition were present in Simmons's bedroom.
Defendant had spent significant time in Simmons's home in
the weeks preceding his arrest. In fact, GPS data derived
from the ankle bracelet worn by Defendant from March 12
through April 2, 2013 placed Defendant at Simmons's
residence every day he wore the bracelet except for March 13
and March 14. Hiding in the closet under a pile of clothes
when arrested, Defendant was in the same room as the firearm,
which was in plain view on the nightstand. In fact, it
appeared that Defendant had recently been in or near the bed
next to the nightstand because, based on the shoes on the
floor and his shoeless state when found, he had apparently
beaten a hasty retreat to the closet upon the arrival of the
officers. Plus, given Defendant's admission to the
arresting officer that the firearm on the nightstand was his,
one could obviously assume that he knew where he had put the
gun. Thus, the above facts clearly support the jury's
finding that Defendant was aware of the presence of the
firearm and ammunition.

Regarding
the second prong of the constructive possession test, the
same facts recited above bolster an inference that Defendant
had the ability and intent to control the gun and ammunition.
The loaded gun was on a nightstand next to the bed where
Defendant's shoes were placed; the bag containing
ammunition and drug paraphernalia were nearby. As noted,
Defendant admitted to Officer Brent Carrier that the firearm
was his. Accordingly, a jury could reasonably infer that
Defendant had previously exercised control over the seized
firearm, and maintained the ability to continue to do so.

Defendant
argues, however, that his admission was uncorroborated and
therefore should not have been considered under United
States v. Micieli, 594 F.2d 102, 107-09 (5th Cir.
1979).[4] This argument is unpersuasive.
Micieli repeats the familiar rule that "a
confession [must] be corroborated in order to sustain a
conviction; a defendant cannot be convicted solely on the
basis of his own admission." Id. at 108. The
Micieli court emphasized, however, that
"extrinsic evidence of a corroborative nature" can
be used to establish the admission's credibility.
Id.; see also Smith v. United States, 348
U.S. 147, 156 (1954) ("One available mode of
corroboration is for the independent evidence to bolster the
confession itself and thereby prove the offense through the
statements of the accused."). Here, as in
Micieli, extrinsic evidence substantiates
Defendant's admission that he engaged in a
drugs-for-firearm transaction. As recited above, the
circumstances surrounding his arrest suggest Defendant's
connection to the firearm. Drug paraphernalia,
methamphetamine, and .22 caliber ammunition were also in
close proximity to Defendant. Thus, Defendant's admission
was properly considered. In combination with all the other
circumstantial evidence of Defendant's knowing possession
of the firearm and ammunition, the jury could reasonably find
constructive possession. Accordingly, the district judge
correctly denied Defendant's motion for a judgment of
acquittal.

B.
The Indictment's Reference to Multiple Felonies

Because
Defendant stipulated that he had a prior felony conviction,
the district court removed from the indictment the list of
Defendant's 12 prior felony convictions, before giving
the indictment to the jury. Over Defendant's objection,
however, the district court refused to change the word
"crimes" to "crime" in the following
sentence of the indictment: "For each of these crimes,
ROBERT WILLIAM GREEN was subject to punishment by a term of
imprisonment exceeding one year." The district court
explained that it would be improper to re- word the
indictment and that doing so would falsely suggest to the
jury that Defendant had only one prior conviction.

On
appeal, Defendant argues that the indictment's reference
to "crimes" (plural, rather than singular) was
prejudicial, because it allowed the jury to infer that
Defendant had more than one felony conviction, and
irrelevant, because a single felony would have satisfied the
convicted-felon element of the § 922(g) offense.

We
review a district court's evidentiary rulings under an
abuse of discretion standard. Aycock v. R.J. Reynolds
Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014).
"A district court abuses its discretion 'if it
applies an incorrect legal standard, applies the law in an
unreasonable or incorrect manner, follows improper procedures
in making a determination, or makes findings of fact that are
clearly erroneous.'" Id. (quoting Brown
v. Ala. Dept. of Transp., 597 F.3d 1160, 1173 (11th Cir.
2010)). To the extent that the district court based its
determination on an interpretation of the Federal Rules of
Evidence, our review is de novo. Doe No. 1 v.
United States, 749 F.3d 999, 1003 (11th Cir. 2014).

Defendant
cites two cases in support of his argument that the district
court abused its discretion in refusing to redact the
indictment's references to Defendant's previous
"crimes." Defendant first points to Old Chief
v. United States, 519 U.S. 172, 174 (1997), which, in
the context of a trial on a § 922(g) prosecution,
addressed the question "whether a district court abuses
its discretion if it . . . admits the full record of a prior
judgment, when the name or nature of the prior offense raises
the risk of a verdict tainted by improper considerations, and
when the purpose of the evidence is solely to prove the
element of [a] prior conviction." The Supreme Court
answered that question in the affirmative, concluding that
the district court abused its discretion by admitting the
record of a specific conviction in the face of the
defendant's general stipulation that he had a prior
felony conviction. Id. at 191-92. In other words,
the stipulation to the fact of a prior felony conviction
sufficed, and gilding the lily with information concerning
the details of that conviction was error. But Old
Chief did not examine the issue presented here, which is
whether a defendant willing to stipulate to the fact of a
prior felony conviction is unfairly prejudiced when the
indictment reveals, through its use of the plural word
"crimes, " that the defendant has more than one
prior felony conviction, albeit the nature or number of those
convictions is not stated. Thus, while Old
Chief's focus on avoiding unnecessary prejudice
informs our analysis, it is not dispositive.

The
second case Defendant relies on is United States v.
Dortch, 696 F.3d 1104 (11th Cir. 2012). That decision is
also helpful, but ultimately not controlling. In
Dortch, the district court gave the jury an
unredacted copy of the indictment, which listed several of
the defendant's previously undisclosed felony
convictions. Id. at 1110. On review, we held that
even assuming the district court erred, any error was
harmless. Id. at 1111. Because Dortch was
limited to harmless error review, however, this Court did not
decide whether it would have been error had the jury been
informed only that the defendant had more than one
conviction, without any elaboration on the nature of those
convictions. Thus, even had we reached the merits in
Dortch, the error alleged in that case differs from
that alleged here, which is, whether, when the defendant has
stipulated to being a convicted felon, there should typically
be no need to indicate that he may have sustained more than
one prior conviction.

Three
of our sister circuits have addressed this issue. The Eighth
Circuit has held that "it is not error to allow the
government to introduce more than one conviction in a case
where only a single conviction is necessary to make the case,
" even when a defendant stipulates to having a felony
conviction. United States v. Garner, 32 F.3d 1305,
1311 (8th Cir. 1994). Even more to the point at issue here,
the Eighth Circuit has also held that a district court does
not err by requiring that a defendant stipulate to the
existence of "one or more felony offenses" "to
avoid misleading the jury into believing [the defendant] had
only one prior conviction." United States v.
Einfeldt, 138 F.3d 373, 376 (8th Cir. 1998) (explaining
that "there was nothing unfair about the court's
form of stipulation, " which was intended to avoid
"mislead[ing] the jury as to [the defendant's]
criminal history"). Thus, the Eighth Circuit presumably
would allow a district court to submit to the jury an
indictment that references a defendant's prior
"crimes" despite the fact that the defendant
stipulated to being a convicted felon.[5]

The
Seventh Circuit has taken the opposite approach, cautioning
that "indictments and evidence should not make the jury
cognizant of any prior convictions beyond those necessary as
an element of the offense." United States v.
King, 897 F.2d 911, 913 (7th Cir. 1990); accord
United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir.
1991) ("The indictment read to the jury, however,
correctly listed only one of [the defendant's]
three prior convictions."). The Seventh Circuit
suggested that the district court erred by "introducing
evidence in the form of a stipulation that King had been
convicted of felonies on three prior occasions."
King, 897 F.2d at 913. Evidence of one conviction
was sufficient when the defendant had stipulated to having a
prior felony. Id. Ultimately, however, the court
upheld the defendant's conviction on harmless error
review. Id. at 914.

The
Fifth Circuit has taken a similarly dim view of allowing
evidence of additional convictions when a defendant has
stipulated to being a convicted felon. In United States
v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989), the
defendant argued that the indictment's reference to his
three prior convictions for "violent felonies" was
prejudicial.[6] In response, the Government argued that it
was free to allege more than one prior felony conviction to
establish that the defendant was a convicted felon for
purposes of § 922(g). Id. The Fifth Circuit
held that because the defendant had stipulated to having a
prior felony conviction, which is all that is necessary to
prove the second element of a § 922(g) offense,
"evidence regarding [the defendant's] two additional
felony convictions was both unnecessary and irrelevant, and
should not have come before the jury." Id. at
111. Nevertheless, the court credited the Government's
argument that any error was harmless because "[v]iewing
this record as a whole, . . . the trial court's error in
admitting evidence of [the defendant's] additional
convictions had little, if any, influence on the jury's
verdict." Id. at 113.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;We
conclude that the approach adopted by the Seventh and Fifth
Circuits strikes a more prudent balance under Federal Rule of
Evidence 403 in the mine run of cases, and when redaction is
requested by the defendant. Accordingly, we conclude that the
district court should have granted Defendant&#39;s request to
redact the indictment to remove any reference to
"crimes" (plural), given that Defendant had
stipulated to having a prior felony conviction. First, a
district court has the power to redact an indictment to avoid
unfair prejudice. Cf. Fed. R. Crim. P. 7(d)
("Upon the defendant&#39;s motion, the court may strike
surplusage from the indictment or information.");
United States v. Adkinson, 135 F.3d 1363, ...

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